MOTION FOR REHEARING
CASE NO. 76,831 and 77,756
PAUL WILLIAM SCOTT
RICHARD L. DUGGER, etc.,
PAUL WILLIAM SCOTT,
STATE OF FLORIDA
Comes now the Petitioner/Appellant, PAUL WILLIAM SCOTT, pursuant
to Fla. R. App. P. 9.330, and respectfully moves this Court to reconsider
its opinion of November 4, 1993, affirming the Palm Beach
County Circuit Court's denial of Mr. Scott's motion to set aside
his conviction and death sentence and denying his petition for
habeas corpus relief. As the following discussion indicates, Mr.
Scott submits that this Court had seriously overlooked and
misapprehended points of law and fact discussed below. Most
importantly, this Court overlooked the effect on Mr. Scott's sentence
of facts establishing that Mr. Scott never intended to kill the victim
and, in fact, fled the scene when co defendant Kondian persisted in beating
This Court also erroneously found that "Scott was in possession
of the victim's jewelry when he was arrested," Slp Op. at 7.
The state was specifically precluded from introducing such
evidence because the State failed to adequately establish that
the evidence was in fact in Mr. Scott's possession or that it
belonged to the victim (R. 1023). Additionally, this Court failed
to address James v. State and its application to Mr. Scott
who objected to the penalty phase jury instructions and raised the
issue on direct appeal. All other claims for relief previously presented
to the Court are specifically argued again; no claim previously
raised is hereby abandoned.
1. On November 4, 1993, this Court issued its opinion in Scott v. Dugger,
Nos. 76,831 and 77,756 (Fla. Nov. 4, 1993), in which the Court
affirmed the trial court's summary denial of Mr. Scott's post-conviction
motion to set aside his conviction and death sentence as well as denied
2. This Court's opinion erred regarding Mr. Scott's appeal in
several respects. Most significantly, this Court's opinion
does not address the impact of the evidence presented in the
Rule 3.850 motion on Mr. Scott's death sentence. Moreover, this
Court's opinion overlooks a substantial amount of evidence which
demonstrates that Mr. Scott is innocent of first-degree murder
and innocent of a death sentence. This evidence is discussed in
detail below. All that Mr. Scott asked -- and all that he is
now asking -- is that he be provided an evidentiary hearing at
which he can establish that the evidence is newly discovered
and that the evidence probably would result in his acquittal
or first-degree murder and/or of the death penalty. see Jones v.
State, 591 So. 2d 911 (Fla. 1992). This Court also erroneously
said that "Scott was in possession of the victim's jewelry when he
was arrested" (Slip Op. at 7). However, this evidence was not admitted
into evidence because the State had failed to establish its relevancy
(R. 1023). In light of new evidence showing that Mr. Scott did not intend
to kill and in fact fled the scene when co defendant Kondian
began to kill, Mr. Scott is not asking too much to be allowed
evidentiary resolution before he is sent to his execution.
3. Mr. Scott has presented substantial evidence which was not
available at the time of Mr. Scott's trial and which demonstrates
that Richard Kondian killed James Alessi. This Court recognized that
this evidence supported Mr. Scott's theory of defense at trial, but
concluded that evidence that Kondian had committed the murder was not
newly-discovered evidence. However, in prior proceedings, this Court
refused to find that Kondian was an available witness: "We do not find
that appellant has met his burden of showing that defense counsel
at trial had the ability to present Kondian's story at appellant's
trial." Scott v. State, 513 So. 2d 653, 655 (Fla. 1987). Clearly,
if he was not available before, his testimony must constitute newly-
discovered evidence. This Court's reasoning has precluded Mr. Scott
from having his evidence heard and judged under the applicable law.
He was not able to present it at trial. He was not able to get this
Court to consider the evidence in prior to post-conviction proceedings.
And now once again, this Court has refused to hear it.
4. Following Mr. Scott's trial and sentence of death, Richard Kondian
entered a guilty plea to second-degree murder. This Court failed
to consider this fact in its direct appeal opinion. Scott v. Wainwright,
433 So. 2d 974 (Fla. 1983). Further, it was not mentioned or discussed
in the opinion affirming the denial or the prior Rule 3.850 motion.
Scott v. State, 513 So. 2d 653 (Fla. 1987) And now this Court
has refused to consider this evidence based upon the fiction that
this mitigating evidence was previously considered.
5. This Court in its current opinion has stated: "The only allegation
beneficial to Scott in Kondian's affidavit is
Kondian's statement that
Scott never intended to kill the victim." Slip op. at 7. Certainly,
evidence of a lack of intent to kill is mitigation nature. The
further rebuts the aggravation circumstance of heinous, atrocious
or cruel. However, Kondian's plea agreement and his affidavit contain
considerably more mitigation evidence. The plea agreement of its face arose
because Kondian's counsel uncovered evidence impeaching Soutullo's
credibility ("He - Soutullo made some other statements to me (Kondian's attorney),
which I believe would be helpful to my client at trial and
would contradict in part his previous statements under
oath and to the police" (Kondian's plea colloquy at 607)). Kondian's
counsel also uncovered forensic evidence to support Kondian's claim
that Alessi sexually attacked Kondian which precipitated the events
leading to Alessi's death (Kondian's plea colloquy at 10.13).
Kondian, himself, stated under oath that Alessi sexually assaulted
him (Kondian's plea colloquy at 27). This evidence that there was no
premeditation led to the disposition agreed to by the State -- second -degree
murder. Thus, Kondian's plea colloquy contains more than a allegation
of no intent to murder; it contains hard evidence supporting the
allegation -- evidence which Mr. Scott has never been allowed to
have considered on his behalf.
6. Of course, intent is an element of premeditated murder. Intent
is also necessary for the State to prove at the penalty phase as well.
See Enmund v. Florida, 458 U.S. 782 (1982); Tison v. Arizona,
481 U.S. 137 (1987). Further, it is an element of the heinous,
atrocious or cruel" aggravation circumstance.
Bonifay v. State, 18 Fla. L. Weekly S464, S465 (Fla. 1973);
Williams v. State, 18 Fla. L. Weekly S405, S408 (Fla. 1993);
Omelus v. State, 584 So. 2d 563 (Fla. 1991).
7. Kondian's affidavit contains additional evidence beneficial to
Mr. Scott, which this Court in its opinion overlooked. ("The only
allegation beneficial to Scott in Kondian's affidavit is Kondian's
statement that Scott never intended to kill the victim." Slip op. at
7.). Kondian stated: "Paul and I were shooting speed and drinking before
we went to Alessi's house." This is evidence of voluntary intoxication;
it is also mitigating evidence. "We were both pretty high." This is further
evidence of the level of intoxication. "At no time did Paul act
as a leader organizing some kind of crime." This is
mitigating evidence which was not considered by the jury, an
cosentencer, not considered by the trial judge, who without
this evidence found Mr. Scott to be "a leader rather than
a follower" (R. 1942), and not considered by this Court in
conducting its proportionality review. "There was something more
than just marijuana in the joints he gave us. From what I can figure
out now, it was probably PCP or Angel Dust. Anyway, I know it made
us all really crazy". This constitutes additional evidence
of intoxication, or the victim's participation in the events, and of
the level of intoxication which rose to statutory mitigation.
8. Kondian's affidavit further indicates that the victim made unwanted
sexual advances. When Kondian resisted, a struggle ensued. Mr. Scott
came to Kondian's assistance after he called out for help. During this
struggle, Kondian feared for his life. Even after Kondian had knocked
Alessi over the head with a bottle and Mr. Scott stopped, Kondian
continued. This evidence was mitigation in nature, and in fact has
been found in another case to be sufficient to warrant a life sentence.
Christian v. State 550 So. 450 (Fla. 1989).
9 Kondian's affidavit further refuted Soutullo's testimony.
Kondian's affidavit indicated that Soutullo's testimony was a fabrication.
Kondian did not make statements to Soutullo about Alessi. At Mr.
Scott's trial, the prosecutor told the jury that Kondian would
implicate Mr. Scott as the killer (R. 1418). Clearly, the jury was
misled in violation of due process.
10. Soutullo now admits that his testimony against Mr. Scott was
false. Yet, this Court without benefit of an evidentiary hearing,
concluded, "under the record in this case, Soutullo's change of
testimony would not have produced a different result." Slip op. at 7.
11. However, Soutullo had told Mr. Scott's jury that Paul Scott
had asked Soutullo to come along while they killed and robbed
Alessi. "He (Scott) just asked me to come along with him, trying
to persuade me" (R. 725). "They (Scott and Kondian) mentioned they
were going to take the battery acid, and "inject it into Alessi" (R. 728).
12. The prosecutor argued that this established an aggravating
circumstance -- "that the felony was committed for the purpose of avoiding
detection and avoiding arrest" (R. 1675). Thus, Soutullo's
testimony directly led the jury to an additional aggravating
circumstance which was balanced against the numerous mitigating
circumstances identified by the judge:
"The defendant is the product of a broken home:
raised in a ghetto area and in poverty. His father, a retired
career Navy man visited with the defendant in September
of 1965 and promised to take his son from the
filth in which he was being reared. After raising the young boy's
hopes, without reason, cause or justificaion, this father walked
away, leaving him emotionally devastated.
13. However, Soutullo's affidavit establishes more than just
that his testimony was false. It also establishes that the State
pressured Soutullo into lying. False testimony was intentionally procured:
"At the time I testified, I went along with what the police and State
wanted me to say even if it wasn't accurate."
14. In cases involving knowing use of false evidence, the defendant's conviction
must be set aside if the falsity could in any reasonable likelihood
have affected the jury's verdict.
United States v. Bagley, 473 U.S. 667, (1985), quoting United
States v. Agurs, 427 U.S. at 102. This is in essence the Chapman v.
California, 386 U.S. 18 (1967), harmless beyond a reasonable doubt
standard. Bagley, 473 U.S. at 679 n.9. In sum, the most rudimentary
requirements of due process mandate that the government not present and
not use false or misleading evidence, and that the State correct
such evidence if it comes from the mouth a State's witness. The defendant
is entitled to a new trial if there is any reasonable likelihood,Bagley,
that the falsity affected the verdict. Here the State knowingly allow
false and misleading testimony to go uncorrected at trial.
15 During the prosecutor's guilt phase closing, he relied heavily upon
Remember Mr. Soutullo's testimony about Rick Kondian. He said
he was high, very high. He was hyper. Paul Scott didn't seem to be.
He seemed to be just his normal self. He hadn't seen him a lot, but
he had seen him around enough to know what acted like.
He said that Rick was really excited and Paul was right there, essentially, joining
in that they were going to go to Boca Raton with Jim Alessi; they
were going to rob him and kill him.
Why should you believe Charles Soutullo? Why should
you believe that testimony? A couple of reasons.
First of all, as to the allegations mad that Mr. Soutullo has made deals for
his testimony and has benefitted from his testimony -- well, his testimony
is impeachable enough just by who he is. He is
not the most reputable character in the world. But there are certain
types of impeachment that we don't just have to take his word for.
Things about deals and cases being dropped, those are things that
we know about. And you can't put a witness on the stand to testify
to things you know are a lie. You can't do that.
Charles Soutullo was a crook and a no-good bum, but he didn't lie
about those deals because he didn't get any. He may have wanted one. He may have thought he was
going to get one, but he didn't Those charges in Fort Lauderdale
were dropped just for the reasons he said they were. The first three
were dropped because there was no evidence. The last two were dropped
because it came up to Court twice and the prosecuting witness didn't
appear, so the Judge threw it out.
The Judge in Fort Lauderdale and the prosecuting people in Fort Lauderdale
didn't even know about his cooperation up here because they weren't told.
The same with the people in California.
He was taken back to California and given five years probation
with nine months in jail, because that's what some Judge in
California thought he deserved. They were not told about his cooperation
because we had no contact with him until he had served his sentence.
Mr. Barrs: "Judge, I object to the prosecutor testifying."
Mr. Selvig: "I believe that's a comment on what Mr. Soutullo said."
THE COURT: "Objection overruled".
16. Soutullo stated in his affidavit: "I was scared that I
would have to do time in jail. I was sure that the police and
State would help me on my case. They told me that they would put in
a good word and help me." Clearly, his testimony at trial was false.
Clearly, the prosecutor relied heavily on Soutullo's false testimony
and improper and false vouching was well taken. At a minimum, Mr.
Scott is entitled to an evidentiary hearing.
17. Further, Soutullo's affidavit establishes mitigation in Mr. Scott's case:
"Rick (Kondian) was the kind of person that usually called all of the
shots. He was a leader type." Yet, at Mr. Scott's trial, the prosecutor
was able to turn this mitigation around: "As you remember from the evidence,
Richard Kondian had used drugs that day and was fairly high that
night. Richard Kondian is more than four years younger than the
Defendant." The prosecutor concluded: "he (Scott), in fact,
was the dominant person in carrying out the actual murder of
James Alessi" (R. 1682-83). This, Soutullo's affidavit demonstrates
that Mr. Scott was deprived of additional mitigation evidence.
The prosecutor, in fact, urged the jury to consider Scott to be the
leader and argued this was aggravating.
18. In its opinion, this Court overlooked the evidence corroboration Kondian's
and Soutullo's affidavits. This Court
ignored Jeff Walsh's affidavit
in which it was established that Kondian was the left handed killer. This Court
ignored the undisclosed police report which demonstrated taht
after the homicide Kondian had cut left index finger which required
five stitches. This Court ignored Robert Aver sworn statement that
Kondian had told him that after the fight got started with Alessi,
"Paul got scared and ran out the door." This Court overlooked the trial
testimony which corroborated this, the screen was
pulled out from molding consistent with Mr. Scott's panicked departure
(R. 840, 957). This Court overlooked the sworn statement of Bernadine
Bernard who was in Mr. Scott's hotel room when he and Kondian returned from Alessi's.
She indicated that:
Q: You came back into the bathroom. What was the first thing
you heard? Maybe you weren't in the bathroom, but you were coming
back to the hallway --
A: As I got to the door Rick (Kondian) told Bo (Paul Scott) you just
ran out on me anyway, punk.
Q: Did you hear anything before that statement, immediately before that statement?
A: Oh, yeah. I did hear Bo (Paul Scott) say loud, well, you are
crazy anyway, or he said either you are crazy or I didn't know you
were that crazy.
Q: Did you hear anything else immediately before that?
Q: So Bo (Paul Scott) said what he said, then Rick said -- what did
Rick say again?
A: Then Rick said, "You ran out on me anyway." or "You're a punk.
You ran out on me." He told him he ran out on him.
Q: What next did you hear?
A: I wanted to know -- oh, no, nothing. Bo (Paul Scott) walked out
of the bathroom. When I walked into the bathroom Bo walked out of the bathroom and
went and sat something like that, so they really didn't speak.
Q: Was it at this time that Rick said I had to do everything myself?
A: He said that a few times. he reminded me of -- like I don't
know, like he wanted to be somebody real important, because
he is a little guy, short little guy, and he was walking back and
forth saying stuff, and I don't remember what he was saying exactly,
but he was talking like. he was kind of upset too.
He said "Well, you ran out on me and I had to do everything myself,
and then I am going to help you out, and I don't know why I am doing
And Bo (Paul Scott) said, "Shut up. I don't even want to hear it."
And I was just trying to figure out what was going on myself, what had happened. I wanted
to know what they did or anything.
Q: After Rick left did you ask Bo (Paul Scott) what happened?
Q: What did Bo (Paul Scott) tell you?
What did he say?
A: Bo (Paul Scott) told me that I didn't need to know what happened, but if I
wanted to talk about it later on he would talk about it, but
right now wasn't the time, and he just put his head in his hands. He was on
the bed, and I don't know if he cried or what, but he was like that
for a long time, like he was upset, real upset, but he told me
he would talk to me later on.
She further elaborated:
I was just -- I sat on the bed next to Bo and he told me, Bo told me,
he goes you are always asking questions. You are going to find out something you
don't want to know. Just don't worry about nothing that Rick did.
Then that is when Rick was just walking back and forth and Rick was talking
about yeah, that is right. I did it, I did it by myself.
You ran out on me. you are a punk, but you can't talk that shit to me anymore
about how bad you are because you ran out on me. That is all he kept
saying is Boa ran out on him. And I wanted to know what happened.
Q: When Rick was walking back up and down making these remarks,
he said, "I did it by myself"?
A: He goes, yeah, I did everything by myself. Because Boa told me,
he goes you don't want -- he goes Bernadine -- no, he told me Valerie,
you don't want to know anything Rick did, anything about what Rick did, and he was real serious when
he told me, because he looked up at me, you know, looked me right in my
face and -- I don't know. He was just -- I don't know what kind
of expression, not mad, but he wanted me to just shut up, to not
And Rick said, "Yeah, that's right, man. I did it all by myself." And he was
mad at Bo, too. He was mad. He said, "Yeah, I did it all by myself. That's right.
you ran out on me." He goes you can talk all that shit about your being bad,
but you can't tell me that because you ran out on me.
Right before Rick and Sunshine a few minutes past and right
before -- not rick and Sunshine, Bo and Sunshine, came in the
door, and he told Rick that he -- let's see, he told him that
-- he says yeah, I ran out on you and I would do it again, because
you were wrong. He told him you were wrong. He goes he told him
he was sick. He stood up and told him you're sick.
19. This Court also overlooked the letter Kondian sent to Valerie Cooke.
Again, in this letter Kondian admitted he killed Alessi and that
Paul Scott did not.
20. Further, this Court failed to discover the false statements made by
the Assistant Attorney General during the oral argument in February
on 1993 to this Court. During that oral argument in response to
questioning by Justice Overton, the Assistant Attorney General
"At that 3.850, he didn't say Kondian did it, he said I did
it in defense of Kondian. If he was truly innocent, why didn't he bring that
out at 3.850 hearing before. This man has flipped flopped back and
forth. This is the fifth time before this Court. He did it, he didn't do it.
He did it in defense of Kondian."
21. This statement was false on numerous levels. First, Mr. Scott
did not testify at the 3.850 hearing. Second, Mr. Scott's collateral
counsel did present evidence that Mr. Scott did not kill Alessi.
Collateral counsel argued that Kondian killed Alessi; he presented
Kondian's testimony that he, Kondian, killed Alessi. in the Initial Brief
on appeal of the denial of the first 3.850 motion, collateral
Kondian testified that Alessi (a very large man and known homosexual and
drug user), came out of the bathroom, naked and tried to sexually assault Kondian.
Kondian reared for his life as he was being raped by
Alessi. When Scott saw the fight, he came to Kondian's aid. Scott
was unsuccessful at first in trying to pull Alessi from Kondian, so he
picked up a vase and hit Alessi over the head with it. Alessi, however,
continued to struggle with Kondian. The struggle was violent and Kondian remained in
fear for his life throughout (R. 33.39).
Kondian was charged by indictment along with Scott with premeditated
murder of Alessi. No one attempted to subpoena Kondian for the trial of Scott.
Kondian stated that had he been subpoenaed and would not have been in jeopardy, he would have
testified on behalf of Scott. (R. 45-47).
Although Kondian had acted only in self-defense, he plea bargained after Scott
was sentence to death. Kondian received a sentence of 45 years. His plea colloquy contains no admission of guilt
of murder. The defense appears in the colloquy. The lower court
took judicial notice of the entire lower court file, including the transcript of
the colloquy. (R. 48-59; 135).
Kondian verified that his attorney had procured the testimony
of witnesses from Alabama against Charles Vincent Soutullo
to show that Soutullo, the only witness against Kondian,
was a liar and a dope friend who would say anything to get
out of trouble. (R. 60-62).
(Initial Brief at 7-8) (emphasis added). Clearly, the State's argument
to this Court that Mr. Scott "said I did it in defense of Kondian" was false.
The State should not be permitted to present false argument.
Due process demands that a prosecutor adhere to fundamental principles
of justice. Berger v. United States, 295 U.S. 78 (1935). Here,
the line was crossed.
22. the Assistant Attorney General also made a false statement regarding what Mr.
Scott said during the clemency proceeding. The Assistant Attorney General
indicated that during the clemency proceedings there was no indication of
who killed Alessi. However, the truth is that the first words out of Mr. Scott's
mouth during the clemency proceedings were "The murder that I stand
convicted of and sentenced to death for was committed by Richard Kondian, Jr.
and not by me."
23. The Assistant Attorney General also argued that Mr. Scott
had not raised the disparate treatment claim in the previous 3.850
motion because "at the last 3.850 hearing, (Scott) said he did the killing."
Again, this was a blatant lie. Mr. Scott did not testify, and his attorney
argued, as the Initial Brief in this Court indicates, that Kondian
was the killer and that trial counsel was ineffective in not at least talking to
Kondian before trial.
24. The Assistant Attorney General also stated that: "He (Scott)
tied him (Alessi) up, and beat him after he was tied up."
Again, the State made false argument to this court.
Dr. Cuevas, the examining pathologist, testified that he could tell from the swelling
in Alessi's hands that he had been tied up before death,
but that there was no way to tell whether he was conscious or in
what order the blows to the head where administered (R. 1193-94).
There's absolutely no evidence that Alessi was beaten after he was tied up.
25. Contrary to the State's blatantly false arguments, Mr. Scott
has always maintained that Kondian committed the murder.
Mr. Scott now has concrete evidence not available at trial to back up his
defense. He has Kondian's testimony and affidavit not available
at trial. In fact at trial, the State told the jury that Kondian
maintained that paul Scott did it all:
The reason that that's such an expected defense in this case --
especially when the Defendants gets tried separately -- is because what do
you think Richard Kondian is going to say -- or his lawyer is going to
say -- when he comes to trial? "It wasn't me. Paul Scott did everything. I ran out the back."
If you accept that -- if you accept that as reasonable, then
nobody is ever going to get convicted in a case like this.
(R. 1418) This was false argument in violation of due process.
26. Mr. Scott also has Soutullo's recantation. Mr. Scott has sworn
Avera, Bernadine Bernard, Jeff
Walsh, Robert Pauley and Ronnie Maybusher. This is concrete
evidence establishing that Mr. Scott neither killed nor intended
a killing. Mr. Scott is innocent of first-degree premeditated
murder and innocent of the death penalty. This Court overlooked
this evidence in it's opinion. An evidentiary hearing must be ordered.
27. In addition, this Court overlooked James v. State, 615 So.
2d 668 (Fla. 1993). There, this Court held when a capital
defendant challenged over broad and vague aggravation circumstances at trial
and on direct appeal, he was entitled to the benefit of Espinosa v. Florida,
112 S. Ct. 2926 (1992).
28. Mr. Scott objected to the vague and over broad aggravation circumstances contained
in Florida death penalty statute (R. 1877-78). He objected to the penalty
phase jury instructions (R. 1877-78). He objected to the penalty phase
jury instructions (R. 1711). He argued that the jury was not given adequate
guidance as to what was necessary to prove the aggravation circumstances.
Mr. Scott submitted proposed instructions which were refused. One
You shall not consider this factor unless the proof of the intent to
avoid arrest and detection is very strong. The mere fact of death
is not enough to invoke this factor. Riley v. State, 366 So. 2d 19 (Fla. 1979)
(R. 1909). The other refused instruction provided:
If you believe from the evidence that the prosecution did
not prove beyond a reasonable doubt that the Defendant personally
killed the decedent, you may consider this as a mitigating
29. On direct appeal, Mr. Scott challenged the aggravating circumstances
contained in the Florida statute as vague and over broad as applied. Specifically,
Mr. Scott attacked the avoiding arrest aggravation submitted to his
penalty phase jury (Initial Brief at 25). He also argued that "heinous,
atrocious and cruel" did not contain adequate definition: "Almost any
capital felony would appear especially cruel, heinous, or atrocious to the laymen"
(Initial Brief at 25). He also challenged the use of the underlying
felony as an automatic aggravator (Initial Brief at 24). Mr. Scott did exactly what Mr.
James did. He is entitled to have this claim considered on the merits,
just as this Court considered Mr. James' claim and ordered a re sentencing.
30. According to James, Mr. Scott is entitled to the benefit
of Espinosa. He objected at trial, proposed jury instructions,
and raised the issue on appeal. A rehearing should be granted.
For the reasons discussed above, Mr. Scott respectfully requests
that this Court revisit its decision of November 4, 1993, and
grant a rehearing in light of the argument presented and the facts
and evidence discussed herein and on the basis of
Mr. Scott's original submission.s
I HEREBY CERTIFY that a true copy of the foregoing Motion for Rehearing
has been furnished by United States Mail, first class postage prepaid,
to all counsel of record on November 29, 1993.
Capital Collateral Representative
Florida Bar No. 092487
Chief Assistant CCR
Florida Bar No. 0754773
OFFICE OF THE CAPITAL COLLATERAL
1533 South Monroe Street
Tallahassee, Florida 32301
By: Counsel for Petitioner Appellant